usic “plagiarism” copyright infringement cases are not uncommon, and have made a comeback in recent years. Artists from Led Zeppelin (Randy Craig Wolfe Trust v. Led Zeppelin (“Stairway to Heaven”)), to Avril Lavigne (Dunbar v. Gottwald (Lavigne’s “Girlfriend”)), to Jessie J (Loomis v. Cornish (Jessie J’s “Domino”)) have lately become embroiled in legal battles over allegedly pilfered music. And no case is more notorious nowadays than Williams v. Bridgeport Music, Inc., the gossip-column-worthy lawsuit between the Marvin Gaye Estate and pop stars Robin Thicke and Pharrell Williams over the pop/dance/R&B hit “Blurred Lines.”
Late last year a new high-profile dispute surfaced and settled before anyone even noticed – that is, until the story of the settlement broke last month. According to various news sources, Grammy®-winning singer/songwriter Sam Smith and rock icon Tom Petty were recently involved in a quiet clash concerning Smith’s international pop hit “Stay with Me” (the 2015 Record of the Year), the melody of which Petty alleged sounded like his classic 1989 single “I Won’t Back Down.” Petty’s publishing company had contacted Smith’s publishing company, and the two artists settled their dispute under the radar in October 2014. Although Smith claims the likeness was a coincidence and that he was not even familiar with Petty’s song, Smith is said to have granted Petty (and the co-writer of “I Won’t Back Down,” ELO’s Jeff Lynne) a 12.5% writing credit, and Petty and Lynne are now listed with ASCAP as two of the five primary songwriters.
Contrast Smith’s approach with that of Robin Thicke and Pharrell Williams in Bridgeport Music: upon being threatened with legal action by the Marvin Gaye Estate over similarities between Thicke’s “Blurred Lines” and Marvin Gaye’s “Got to Give It Up,” Thicke and Williams preemptively sued their accusers for a declaratory judgment of non-infringement and have been mired in a highly publicized court battle complete with scandalous deposition testimony and mudslinging in the press. Additionally, the Marvin Gaye Estate countersued Thicke and Williams for infringement of “Got to Give It Up” as well as other songs the estate alleges were copied. Their motion for summary judgment having been denied, Thicke and Williams are now in the midst of trial.
If a songwriter is accused of copyright infringement, the question of whether to settle or fight is rarely black and white. Regardless of whether the infringement claim is legitimate or far-fetched, or based on conscious or unintended actions, the accused must engage in a detailed risk assessment to determine how best to proceed in defense. Factors to consider include the cost of litigation, the cost of a possible resolution (including the amount of up-front payments demanded to resolve the matter, possible future royalties, and legal fees), the risk of unwanted publicity, and the strength of the aggrieved party’s claim based on the objective similarities between the two compositions. These elements are, of course, difficult to predict, but a thorough analysis can help songwriters determine whether they are best served resolving the case or fighting on.
In evaluating a response to an allegation of infringement, songwriters (particularly risk averse ones) should also familiarize themselves with the history that has already been written on music “plagiarism” cases, particularly the plight of George Harrison in a seminal 1976 case that re-affirmed the strict liability nature of copyright law, and clarified that even if someone denies they copied, there exists a concept of “subconscious infringement.” In that case – Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976) – music publisher Bright Tunes sued former Beatle George Harrison claiming that his 1970 solo effort “My Sweet Lord” infringed the copyright in the musical composition of The Chiffon’s 1963 pop hit “He’s So Fine.” The court held that two unique musical motifs in “My Sweet Lord” were “virtually identical” to those in “He’s So Fine,” and because Harrison admitted that he’d had access to and had heard the wildly popular “He’s So Fine,” he had infringed the earlier song’s copyright even though the copying was unintentional and, indeed, unconscious.
Cases like Bright Tunes serve as a reminder of how important it is to recognize the fact-sensitive and often unpredictable nature of a copyright case, particularly in the music context: one who denies they intended to copy can still be held liable, whereas one who intends to copy, but does not cross the line into “substantial similarity” can avoid liability altogether. It is somewhat disquieting to think that the melody in your head that you had to write down in the middle of the night so it didn’t escape may have come from somewhere you didn’t expect, intend, or even recall. However, while it may not be possible to accurately predict what will happen in a dispute long after that late-night composition has hit the charts, knowledge of the outcomes of previous disagreements and the potential strategies available can be powerful tools in choosing the most appropriate course of action.